John
J. O'Reilly argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys;
John J. O'Reilly and Andrew Gimigliano, on the brief).

SYLLABUS

This
syllabus is not part of the opinion of the Court. It has been
prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the
Supreme Court. Please note that, in the interest of brevity,
portions of any opinion may not have been summarized.

Albin,
J., writing for the Court.

In this
interlocutory appeal, the Court determines two issues: what
is the appropriate standard of appellate review of a trial
court's factual findings based solely on the court's
viewing of a video-recorded police interrogation, and did
defendant invoke his right to remain silent during the
interrogation.

In
2011, defendant S.S. was tried before a jury and convicted of
first-degree aggravated sexual assault of his six-year-old
daughter and second-degree endangering the welfare of his
child. The Appellate Division reversed those convictions for
reasons unrelated to this appeal and ordered a new trial.

Before
the start of the second trial, defendant moved for the first
time to suppress incriminating video-recorded statements he
made to investigators in the Hudson County Prosecutor's
Office, claiming that investigators failed to honor his
invocation of his right to silence in violation of
Miranda.

Sergeant
Kolich and Detective Hans interrogated defendant in the
Hudson County Prosecutor's Office. For approximately
forty-seven minutes, Detective Hans conducted the
interrogation alone. In response to Detective Hans's
questions, defendant repeatedly denied that he had abused his
daughter. After Sergeant Kolich entered the interview room,
the questioning became increasingly accusatory. Sergeant
Kolich repeatedly made the misrepresentation that
defendant's daughter told the investigators that
defendant put his penis in her mouth. Sergeant Kolich, again
and again, accused defendant of lying. A little more than one
hour into the interrogation, Sergeant Kolich said
"[T]here's something inside you you want to say, and
you're fighting it. You're fighting it."
Defendant replied, "No, that's all I got to say.
That's it."

The
interrogation proceeded, and defendant continued to suggest
that he did not want to speak. Eventually, he indicated that
"it happened" when, after a shower, he was drying
himself and his daughter entered the bathroom.

In
ruling on the motion, the trial court relied solely on its
review of the video-recorded interrogation. Because it found
that defendant invoked his right to remain silent under
Miranda when he said, "No, that's all I got
to say. That's it, " the court entered an order
suppressing all statements made after that point in the
interrogation.

The
Appellate Division granted the State's motion for leave
to appeal, and a two-member panel reversed the trial
court's order. The panel noted that it defers to a
"trial court's findings of fact that are supported
by sufficient credible evidence in the record" when the
suppression hearing involves the taking of witness testimony.
The panel stated, however, that such deference is not
required when "the trial court's factual findings
are based only on its viewing of a recorded interrogation
that is equally available to the appellate court, "
quoting State v. Diaz-Bridges, 208 N.J. 544, 566
(2011). Relying on Diaz-Bridges, the panel engaged
in a de novo review of the video-recorded
interrogation. The panel determined that, based on its
"independent review of the video, " the State had
proven beyond a reasonable doubt that defendant never revoked
his initial waiver of his right to remain silent.

HELD:
After a careful reappraisal of Diaz-Bridges, the
Court now holds that the non-deferential standard articulated
in that case is at odds with traditional principles limiting
appellate review. An appellate court ordinarily should defer
to a trial court's factual findings, even when those
findings are based solely on its review of a video recording.
Deference, however, is not required when the trial
court's factual findings are clearly mistaken. Here,
sufficient credible evidence in the record supports the
factual finding that defendant invoked his right to silence
during the interrogation.

1.
Generally, on appellate review, a trial court's factual
findings in support of granting or denying a motion to
suppress must be upheld when those findings are supported by
sufficient credible evidence in the record. The issue here,
however, concerns the level of deference owed to a trial
court's factual findings based solely on its review of a
video recording or documentary evidence. That issue arose in
Diaz-Bridges, supra, where the Court
expressed its view that a reviewing court need not give
deference to another court's factual findings based
solely on a video-recorded interrogation, stating: "When
the trial court's factual findings are based only on its
viewing of a recorded interrogation that is equally available
to the appellate court and are not dependent on any testimony
uniquely available to the trial court, deference to the trial
court's interpretation is not required." 208 N.J. at
566. (pp. 16-19)

2.
Federal courts, and a number of state courts, have adopted a
standard of appellate review that requires deference to a
trial court's factual findings when those findings are
based on viewing a video-recorded interrogation or search.
The policy reasons for a deferential approach are set forth
in Anderson v. City of Bessemer City, 470 U.S. 564,
574-75 (1985): "The trial judge's major role is the
determination of fact, and with experience in fulfilling that
role comes expertise. Duplication of the trial judge's
efforts in the court of appeals would very likely contribute
only negligibly to the accuracy of fact determination at a
huge cost in diversion of judicial resources." The
Anderson Court adopted a clearly erroneous standard
of review. Federal Rule of Civil Procedure 52(a)(6)
was amended the same year that the United States Supreme
Court released its decision in Anderson. The
Advisory Committee rejected "a more searching appellate
review" in favor of a "clearly erroneous"
standard for "documentary evidence." Several United
States Courts of Appeals have applied a deferential standard
in reviewing factual findings based on video evidence.
Several state jurisdictions also utilize a deferential
standard in reviewing a trial court's factual findings
based on video evidence. In contrast, a number of
jurisdictions favor a de novo approach. (pp 19-24)

3. The
Court now concludes that a standard of deference to a trial
court's factfindings, even factfindings based solely on
video or documentary evidence, best advances the interests of
justice in a judicial system that assigns different roles to
trial courts and appellate courts. The Court rejects the
de novo standard introduced in
Diaz-Bridges. A policy of deferring to findings of
fact of a trial court based on its review of video and
documentary evidence has certain tangible benefits. When more
than one reasonable inference can be drawn from the review of
a video recording, a trial court's factual conclusions
reached by drawing permissible inferences cannot be clearly
mistaken, and the mere substitution of an appellate
court's judgment for that of the trial court's
advances no greater good. Permitting appellate courts to
substitute their factual findings for equally plausible trial
court findings is likely to "undermine the legitimacy of
the [trial] courts in the eyes of litigants, multiply appeals
by encouraging appellate retrial of some factual issues, and
needlessly reallocate judicial authority." See Fed.
R. Civ. P. 52(a) advisory committee's note to 1985
amendment. Acknowledging that a trial court's factual
findings are entitled to deference does not mean that
appellate courts must give blind deference to those findings.
Deference ends when a trial court's factual findings are
not supported by sufficient credible evidence in the record.
(pp. 24-28)

4.
Under the United States Supreme Court's interpretation of
the Fifth Amendment, the police are required to stop a
custodial interrogation when a suspect unambiguously asserts
his right to remain silent. In contrast, under New
Jersey's privilege against self-incrimination, a request,
however ambiguous, to terminate questioning must be
diligently honored. If the police are uncertain whether a
suspect has invoked his right to remain silent, two
alternatives are presented: (1) terminate the interrogation
or (2) ask only those questions necessary to clarify whether
the defendant intended to invoke his right to silence. Words
similar to those used by defendant here have been considered
sufficient to invoke the right to silence. (pp. 28-32)

5. The
trial court concluded that, based on its review of the entire
video-recorded interrogation, "defendant unambiguously
invoked his right to silence" from the point he stated,
"that's all I got to say." The Appellate
Division followed the guidance given in Diaz-Bridges
and substituted its interpretation of the video in place of
the trial court's reasoned analysis. The trial
court's factual conclusions are supported by sufficient
credible evidence in the record and therefore are not clearly
mistaken. The Court affirms the trial court's suppression
order. After defendant said, "No, that's all I got
to say. That's it, " his statements are
inadmissible. (p. 32-34)

The
judgment of the Appellate Division is REVERSED. The matter is
REMANDED to the trial court for proceedings consisted with
this opinion.

OPINION

JUSTICE ALBIN

In
this interlocutory appeal, we must determine two issues: what
is the appropriate standard of appellate review of a trial
court's factual findings based solely on the court's
viewing of a video-recorded police interrogation, and did
defendant invoke his right to remain silent during the
interrogation.

Relying
solely on a review of the video-recorded interrogation, the
trial court found that defendant asserted his right to
silence when he said, "that's all I got to say.
That's it." The trial court suppressed all
statements made after that utterance because the
investigators failed to honor defendant's invocation of
his right to remain silent in violation of Miranda v.
Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).

A panel
of the Appellate Division engaged in a de novo review of the
video-recorded interrogation and reversed. The panel made its
own factual findings based on defendant's tone of voice
and the flow of the interview, concluding that defendant did
not assert his right to remain silent. In applying the de
novo standard of review, the panel relied on language in
State v. Diaz-Bridges,208 N.J. 544, 566 (2011),
which stated that when "the trial court's factual
findings are based only on its viewing of a recorded
interrogation that is equally available to the appellate
court . . . deference to the trial court's interpretation
is not required."

After
a careful reappraisal of Diaz-Bridges, we now hold
that the non-deferential standard articulated in that case is
at odds with traditional principles limiting appellate
review. We have reached this conclusion for several reasons.

First,
our system of justice assigns to our trial courts the primary
role of factfinder. That role is especially suited to our
trial judges, who have ongoing experience and expertise in
making factual rulings. Trial judges routinely make factual
determinations not only in assessing the credibility of
witnesses but also in assessing documentary evidence, which
oftentimes is susceptible to alternative inferences.

Second,
the customary role of an appellate court is not to make
factual findings but rather to decide whether those made by
the trial court are supported by sufficient credible evidence
in the record. That limited standard of review is consistent
with the belief that appellate courts should not replicate
the work of our trial courts or reverse their factfindings
based on a mere difference of opinion.

Third,
notions of judicial economy and finality call for a standard
of review where appellate courts defer to a trial court's
factual findings in the absence of clear error.

Applying
these principles, we find that the trial court's factual
determination, based solely on its review of the
video-recorded interrogation, is supported by sufficient
credible evidence in the record. Although the Appellate
Division and trial court drew different inferences from the
record, we conclude that the inferences drawn by the trial
court were reasonable and that the trial court's ultimate
determination was not clearly mistaken.

We
therefore reverse the judgment of the Appellate Division and
remand to the trial court for proceedings consistent with
this opinion.

I.

A.

In
2011, defendant S.S. was tried before a jury and convicted of
first-degree aggravated sexual assault of his six-year-old
daughter, N.J.S.A. 2C:14-2(a)(1), and second-degree
endangering the welfare of his child, N.J.S.A. 2C:24-4(a).
The trial court sentenced defendant to a fifteen-year prison
term on the sexual-assault charge, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent
five-year term on the endangering charge. The Appellate
Division reversed those convictions for reasons unrelated to
this appeal and ordered a new trial. This Court denied the
State's petition for certification, State v.
S.S., 220 N.J. 573 (2015), and defendant's
cross-petition, State v. S.S., 220 N.J. 574 (2015).

Before
the start of the second trial, defendant moved for the first
time to suppress incriminating statements he made to
investigators in the Hudson County Prosecutor's Office,
claiming that investigators failed to honor his invocation of
his right to silence in violation of
Miranda.[1]

The
Honorable Sheila A. Venable, P.J.Cr., conducted a
Miranda hearing pursuant to N.J.R.E.
104(c)[2] at which the State introduced one piece of
evidence -- the video-recorded interrogation. Neither the
State nor the defense called any witnesses. From her review
of that video, Judge Venable made her ultimate findings of
fact.

To give
context to defendant's interrogation and the factual
conclusions reached by the trial court, we begin with the
events that led to the interrogation.[3]

B.

In
August 2009, defendant and "Jane" had been married
for five years and were the parents of two daughters,
"Marilyn, " age six, and "Lois, " age
four.[4] While defendant and Jane worked during the
week, Lois was in daycare, and a babysitter looked after
Marilyn. On August 21, 2009, Marilyn was at the
babysitter's house. While the babysitter was changing her
infant son's diaper, Marilyn began asking questions about
the infant's penis. During the conversation, Marilyn told
the babysitter that defendant put his penis in her mouth.

Later,
the babysitter told Jane about her daughter's claim. In
response to an anonymous call alleging that defendant had
abused Marilyn, a representative of the Division of Youth and
Family Services[5] (DYFS) visited defendant's home and
interviewed each family member. On August 25, 2009,
defendant, Marilyn, the babysitter, and Jane each gave
video-recorded statements to Sergeant Kenneth Kolich and
Detective Polly Hans of the Hudson County Prosecutor's
Special Victims Unit.

During
her interview, Marilyn denied that her father abused her or
put his penis in her mouth. She also denied making the
comment that the babysitter attributed to her. In speaking
with the investigators, the babysitter stood by her
recollection of Marilyn uttering that one remark. The
babysitter noted, however, that Marilyn never repeated the
statement. Jane told the investigators that she did not
believe that an act of abuse had occurred.

C.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After
those interviews, Sergeant Kolich and Detective Hans
interrogated defendant in the Hudson County Prosecutor&#39;s
Office.[6]Defendant waited for several hours in a
room in the Prosecutor's Office before the interrogation
started at about 6:17 p.m. For approximately forty-seven
minutes, Detective Hans conducted the interrogation alone.
She began by reading defendant his Miranda rights, which
included advising him that he had "the right to remain
silent" and that anything he said would "be used
against ...

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